(Best of the tube this weekend: Watch us preview the ObamaCare cases on "The Journal Editorial Report," Saturday at 2 and 11 p.m. ET on Fox News Channel.)
Yesterday we noted that Linda Greenhouse of the New York Times had weighed in with a shallow, dishonest and silly defense of ObamaCare against the constitutional challenge that will come before the Supreme Court next week. Last night Greenhouse's younger, edgier counterpart, Slate's Dahlia Lithwick, added to the left-liberal din. She did so in a most remarkably weird way.
She starts by echoing Greenhouse's legal claim that there really isn't anything to the case against ObamaCare. But she manages to twist herself into utter incoherence:
Let's start by setting forth two uncontroversial propositions.
The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. Linda Greenhouse makes the first point more eloquently than I can. . . . The law is a completely valid exercise of Congress' Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won't put us back in those days as if by magic. Nor does it amount to much of an argument.
So that brings us to the really interesting question: Will the Court's five conservatives strike it down regardless?
Lithwick does not offend logic by asserting that both her propositions are true--or, to put it another way, that if the court strikes down the individual mandate as unconstitutional, it will have made a legal error. If that happens, it is likely that some justices will agree with Lithwick's conclusion.
The second proposition, however, disproves Lithwick's claim that the first proposition is uncontroversial. Indeed, the very fact that there is a controversy before the court is sufficient to disprove the claim that the constitutionality of ObamaCare is uncontroversial. Lithwick seems to mistake the absence of doubt in her own mind for an absence of controversy. It's narcissism as legal analysis.
Or maybe groupthink. If Lithwick were lunching with Greenhouse, there would be no controversy at the table over the constitutionality of ObamaCare. The same would be true if they made it a double date with Larry Tribe and Akhil Amar (assuming the two men's views haven't changed since February 2011).
That is merely to say, however, that there is no controversy among people who have the same opinion. Tautology, baby! But it gets even odder. There is an implicit appeal to authority--their own authority--in the cocksure pronouncements of journalists like Greenhouse and Lithwick and scholars like Tribe and Amar.
To be sure, these people all have some degree of intellectual authority owing to their extensive experience studying or reporting on legal matters. That is why we go through the trouble of refuting their nitwitted arguments rather than simply declaring them nitwitted and being done with it.
But here's where the Lithwick approach gets really bizarre. Whatever intellectual authority she may have, her legal authority is equal to that of a street vagrant. That is to say, while she is free to opine on constitutional questions and may even have informed opinions (though she has placed that in considerable doubt), she cannot decide whether ObamaCare is constitutional. Only judges, and ultimately the justices of the Supreme Court, can do that.
One reason that scholars and journalists opine about questions of law is that they--we--hope to influence the thinking of Supreme Court justices and other jurists. It's reasonable to surmise that Lithwick wrote her ObamaCare piece with that objective in mind. But her strategy for persuading the justices seems to be to bully them into compliance with her agenda by insulting and disrespecting them.
Consider in this light the two propositions in the above-quoted passage: ObamaCare is constitutional, and the justices may decide that it is not. By deeming the first proposition uncontroversial, she implies that the justices' opinions are unworthy of respect unless they agree with her own. That seems an odd way of winning somebody over to your side.
But wait, it gets worse. Look at this prediction:
The current fuss being made over the health care cases has offered the court a perfect cover story. They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market.
Lithwick notes that some "conservative legal elites" agree with her as to the likely outcome. As we noted yesterday, we have heard the same thing in private conversations. In fact, had she done a little reporting, she could have come up with better examples than Charles Fried, the former Reagan solicitor general and Massachusetts Supreme Judicial Court justice, who has moved sharply to the left in recent years. There are plenty of actual conservatives who expect the court to uphold ObamaCare.
But Lithwick's characterization of the court's work in deciding this case as a "cover story" and a pretense is truly astonishing. We don't always agree with the Supreme Court's decisions, but we assume the justices take the law seriously and aren't mere politicians. Our own conversations with justices and other judges convince us that is how the vast majority of them see their own work.
It is probably true that when the Supreme Court is in the position of making new law in a high-profile case--as it will be in ruling either for or against the constitutionality of the individual mandate, Lithwick & Co.'s claims to the contrary notwithstanding--politics cannot help but come into play. The court does have reason to be concerned about its institutional legitimacy.
Yet in light of the unanticipated popular backlashes against Roe v. Wade and Kelo v. New London--decisions that are probably as "uncontroversial" as ObamaCare at our Greenhouse-Lithwick-Tribe-Amar four-top--that would militate in favor of striking down, not upholding, ObamaCare.
And maybe that's what Lithwick really thinks will happen. She does, after all, open her piece by acknowledging that outcome as a possibility. Perhaps her goal in insulting the justices is not to win them over but to discredit them in her readers' eyes should they dare to defy her.